Alex Clark is a Research Assistant within the School of Information Management at Victoria University of Wellington. He has a Bachelor of Arts in Media Studies and International Relations from Victoria University, and completed his undergraduate studies while on exchange at the University of Texas at Austin and the University of California, Berkeley. His research explores the future of online content distribution, and uses qualitative and quantitative methods to assess emerging trends within different types of media including books, music, journalism and academic research.

Brenda ChawnerVictoria University of Wellington New Zealand

Brenda Chawner is a Senior Lecturer in the School of Information Management, Victoria University of Wellington. She has over 30 years experience in using and developing library applications of IT, and currently teaches courses on metadata and advanced information technology for information managers in Victoria University of Wellington's Master of Information Studies programme. Her research interests focus on the ways in which technology enhances or restricts access to information, and she has published on open access, free/libre and open source software, the use of social media by information professionals, and copyright and licensing of digital information. Brenda has a B.Sc. and an M.L.S. from the University of Alberta, and a PhD from Victoria University of Wellington.

Enclosing the public domain: The restriction of public domain books in a digital environment

Alex Clark, Brenda Chawner

Abstract

This paper explores restrictions that are being applied to New Zealand public domain books once they have been digitized and hosted online. The study assesses access and usage restrictions within six online repositories, using a sample of 100 pre–1890 New Zealand heritage books. The findings indicate that new restrictions are being applied to works no longer protected by copyright. Out of the 50 titles that had been digitized, only three were hosted by repositories that do not restrict any type of subsequent use. Furthermore, 48 percent (24) were subject to access restrictions. Copyright law’s delicate balance between public and private interests is being eroded by the prevalence of online terms and conditions, which invoke the doctrine of contract law in an attempt to restrict the public domain and opt–out of limitations upon copyright. Furthermore, ambiguity surrounding the copyright status of some books is encouraging digitizers to adopt restrictive access policies, even when a work is highly likely to be in the public domain. Unless clear rules of online curatorship are articulated within legislation, previously liberated public domain works are at risk of being restricted by online intermediaries.